High Court
Case Details
Crl.A. 52/2010 BEFORE HON’BLE MR. JUSTICE K. SREEDHAR RAO AND HON’BLE MR. JUSTICE P.K. SAIKIA This appeal is directed against the judgment and order dated 14.12.2009, passed by Sessions Judge, Golaghat in Sessions Case No. 24/2006 convicting the accused/ appellants of offence under Section 302/34 IPC and sentencing to imprisonment f or life and a fine of Rs. 2000/- in default R.I. for 3 months for offence u/s 30 2/34 IPC. 2. rd Ms. S. Jahan, learned Addl. P.P., for the respondents. 3.
Legal Reasoning
In view of above, we are of the view that on the materials on record, it cannot be said that prosecution has proved the charge u/s 302 IPC against the a ccused Nagen Tanti. But on the conspectus of our forgoing discussion, it can ver y safely be held that the accused Nagen is guilty of offence u/s 304, part-I IPC . 18. In so far conviction against the accused Dipak Baruah is concerned, we h ave found that though PW- 1 and PW-7 had stated that accused Dipak assisted the accused Nagen Tanti in assaulting the deceased yet other witnesses who claimed t o have seen such a incident did not support those witnesses inasmuch as none of the other witnesses uttered any word about their witnessing, accused Dipak’s ass isting the accused Nagen in assaulting the deceased. 19. We may also note that there is no evidence on record to show that on the fateful morning, the accused Nagen had assaulted the deceased in furtherance co mmon intention of both the accused persons. Being so, in our considered opinion, there is no way to invoke the provision of Section 34 IPC to make the accused D ipak Baruah guilty for the offence committed by accused Nagen Tanti. Situations being such, the accused Dipak Baruah cannot be convicted of offence under Sectio n 302 IPC with the aid of Section 34 IPC. In that view of the matter, the convi ction of accused Dipak Baruah of offence u/s 302 IPC is found unsustainable and same is, therefore, liable to be quashed and set aside. Consequently, the accused Nagen Tanti stood convicted u/s 304 part-I IPC 20. . On considering the materials on record, we find it necessary to sentence him t o R.I. for 8 years and a fine of Rs. 2000/- in default R.I. for another 3 month s for offence u/s 304 part- I IPC. The period which he already spent in jail is to be set of against the sentence imposed upon him. 21. However, in view of our forgoing discussions, we acquit the accused Dipa k Baruah of offence u/s 302 IPC. He is ordered to be released immediately if he is not required to be detained in connection with other cases. 22. in this appeal stands modified as indicated above. In the result, the judgement of the learned trial Court which impugned
Arguments
Heard Mr. S. Buragohain, learned counsel for the petitioner and also hea Since these three appeals originate from a common judgement, we propose to dispose of all these appeals by this common judgement. 4. The brief facts which have emerged during the trial and which are necess ary for disposal of the present appeal are that on 06.12.2005 at about 10:30 A.M , when one Sukhdev Dighal was coming home, he met the accused persons in front o f his house whereupon he enquired them as to why they had called him by name. Th is infuriated the accused persons so much so that the accused Nagen Tanti assaul ted the deceased with a crowbar inflicting various wounds on his person. The acc used Dipak Baruah too facilitated Nagen Tanti in assaulting said Dighal. Since D ighal sustained serious wounds on his person, he was immediately taken to hospit al but he died on the way to hospital. 5. An FIR to that effect on being lodged with O.C. Numuligarh Police statio n, same day, O.C. registered a case and ordered one Sri Sonaram Sarma, ASI of Po lice, to investigate the case. Being so ordered, the I.O. visited the place of o ccurrence, conducted inquest on the dead body and sent it to the hospital for po st mortem examination, examined the witnesses and doing other needful, he submit ted charge-sheet u/s 302/34 IPC against the accused persons and then forwarded t hem to the Court to stand trial. 6. The learned Magistrate before whom charge-sheet was so laid committed to the Court of Sessions since the offence u/s 302 IPC is exclusively triable by t he Court of Sessions. On the receipt of the case on commitment and on hearing th e parties, learned Sessions Judge, Golaghat framed charged u/s 302/34 IPC and ch arge, so framed, on being read over and explained to the accused persons, they p leaded not guilty and claimed to be tried. During trial, the prosecution side has examined as many as 7 (seven) wit 7. nesses including the informant, Medical Officer and the I.O. The statements of t he accused persons u/s 313 Cr.P.C. were recorded. The plea of the accused person s was of total denial. They, however, did not adduce any evidence of their own. The learned trial Court on conclusion of the trial convicted the accused persons of offence u/s 302/34 IPC. It is that judgment which has been challenged in the present appeal. 8. Opening up the argument on behalf of the appellants, Mr. S. Buragohain h as submitted that the evidence of principal witnesses is inconsistent, contradic tory and defective on materials points and as such, learned trial Court should n ot have relied on such evidence in recording a verdict of guilt u/s 302/34 IPC a gainst the accused persons. 9. It has also been contended that though in their evidence, PW-1, PW-2, PW -7 had stated that the accused Dipak helped the accused Nagen in assaulting the deceased at the place of occurrence on the morning in question, other witnesses who claimed to have witnessed such a incident did not utter any word about accus ed Dipak assisting the accused Nagen in assaulting the deceased at the place of occurrence on the morning in question. 10. The learned counsel for the appellant has further contended that there i s evidence on record to show that it was deceased tried to attack the accused Na gen for which the later got provoked and had assaulted the deceased with the wea pons in his hand. Being so, learned trial Court was not justified in convicting the accused persons of offence u/s 302/34IPC. He, therefore, urges this Court t o set aside the judgement rendered by the trial Court on allowing the present ap peal. 11. Controverting the submissions, so advanced by the learned counsel for th e appellant, Ms. S. Jahan learned Addl. P.P. has submitted that argument, advanc ed by the learned counsel for the appellant is based---- not on facts ----but--- on fiction. According to her, the learned trial Court has rendered the judgment under challenge on the basis of materials on record having regard to the laws w hich hold the field in question. Such a judgement therefore, invites no interfer ence from this Court of appeal. She therefore submits this Court to affirm the j udgment of the trial Court on dismissing the appeal at hand. 12. We have considered the rival submissions having regard to the evidence o n record. Before we proceed further we find it necessary to have a look into the evidence of Doctor who conducted autopsy on the body of aforesaid Sukhdev Degha l. He is Dr. Diwjen Bordoloi (PW-6). A careful perusal of the evidence of PW-6 reveals that the deceased died a homicidal death on or about 06.12.2005. His ev idence further reveals that cranio spinal injury which was anti mortem in nature had occasioned the death of the deceased. It may be stated here that the deceas ed died a homicidal death on sustaining wounds aforementioned has not been dispu ted by the appellants either. 13. So situated, let us see who inflicted such wounds on the deceased on or about 06.12.2005. A sauve perusal of the evidence of PW’s, more particularly, PW -1, PW-3, PW-4 and PW-7 demonstrates that on the fateful day at about 10.30 a.m. the accused Nagen Tanti had assaulted the deceased just in front of the house o f the deceased with a crowbar inflicting grievous injuries on his person, more p articularly, on his neck which occasioned his death soon thereafter. The projections, so made by evidence of PW’s finds support from the stat 14. ement rendered in the FIR as well which was proved as Ext-1. Equally importantly , the evidence rendered by Medical officer lends more and more credence to the t estimony of the ocular witnesses, PW-1, PW-3, PW-4 and PW-7 in particular. Being so, there cannot be any doubt that on 06.12.2005, in the morning, accused Nagen Tanti authored the crime in question which occasioned the death of Sukhdev Digh al. 15. However, a closer look into the evidence of PW’s, PW-1, PW-3, PW-4 also reveals that on the fateful day, at about 10.30 a.m. there is a quarrel between the accused Nagen and the deceased Sukhdev. The evidence of the PWs further sho ws that the deceased, who was armed with a dao at that point of time, charged at the accused Nagen which provoked the later so much so that he started assaultin g the deceased with a crowbar which he was yielding during such time. 16. Those revelations again demonstrates that the accused lost control over himself temporarily on being attacked by the deceased and being deprived of the power of self control, temporarily, he assaulted the deceased with a crowbar whi ch occasioned his death soon thereafter. But then, the fact remains that the acc used assaulted the deceased with the intention of causing such bodily injuries w hich are likely to cause his death on the morning in question. 17.